APPEAL COURT

Timaru Herald, Volume CXXXVII, Issue 19783, 26 April 1934, Page 13

APPEAL COURT

O. F. NELSON’S CASE COUNSEL'S SUBMISSIONS By Telegraph—Press Association WELLINGTON, April 24. The O. F. Nelson case was continued by the Full Court this morning. Continuing his argument, Mr Cooke submitted that the New Zealand Government could not sub-delegate the whole of its authority to the Administrator of Samoa. New Zealand did not have absolute authority over Samoa; it was purely a trustee for the League of Nations, and could » legate only such powers as a trustee could delegate. In law New Zealand was subject in its administration of Samoa to the ultimate control of the League of Nations. It was, therefore, clearly beyond the trustee powers for the New Zealand Governm.nt to sub delegate practically the whole of its authority of the Administrator, and give him virtually unrestricted power of government by regulation. Under the Samoa Act, 1921, the Administrator could make a regulation for the “peace, order and good government of Samoa.’’ This gave the Administrator practically dictatorial powers of government by degree, more extensive even than the powers of the Government in New Zealand, by Order-in-Council, as the powers were vested in a single person. As the sub-delega-tion was void, therefore the regulations made under this power, by virtue of which Nelson had been prosecuted were also void. Counsel submitted further that the particular regulations were even in excess of the powers given by the Samoa Act, 1921. By means of his power to make regulations, the Administrator had attempted to create a new seditious crime, and at the same time had tried to save himself the trouble of proving the very essence of the crime, namely its seditious nature. Ke had assumed power of declaring particular organisations seditious, with the result that if any person had anything at all to do with them he could be sentenced to a considerable term of imprisonment without even being allowed to prove that there was nothing seditious in the relationship. The Chief Justice: In other words the right of trial has been taken away. Mr Cooke: The Administrator has clearly shown that he wants to catch certain people, and has framed the regulation so as to simplify the question of trial as much as possible. He stated that the regulation made it a offence even to be present at any gathering of Mau members. If a Visitor attended a Mau tea party he committed an offence, and was liable to an extended term of imprisonment. At a recent function the Administrator himself had been asked to attend, but he replied that unfortunately he was unable to be present. If he had been present Y wo*°i clearly have committed an offjnce against his own regulation. The Chief Justice: It is a great p.ty that the question, whether the regulations were void, had not been argued in the earlier prosecutions, made under them. Counsel stated that their validity had always been assumed.

Mr Justice It has never been contended that the Administration’s power permits Government by regulation and not by trial. The Chief Justice: And that any incorporated company in Samoa could be declared a seditious organisation, whether seditious or not. Counsel submitted that a proper examinrtion of the facts and law would show that the regulations •teimply would not do any longer” in Samoa. “ Harsh and Excessive.” Mr Cooke submitted that the evil dance showed that the sentences of eight months imprisonment and ten ! years banishment imposed on Nelson ■ were in the circumstances clearly ; harsh and excessive. The Chief Justice: Because of the : 1 political nature of the offence you ati tach a sentence of imprisonment. ; i Counsel stated that his argument. r . was directed more particularly to the sentences of imprisonment, although, j I of course he did not accept the term f of 10 years exile as reasonable, j i Mr Cooke reviewed the evidence and i submitted that it showed that Nelson ! | had no idea of accomplishing anything ' i by force, but contemplated peaceful methods only. The trial judge had j i built up the whole of his judgment on .i an erroneous assumption. The judge ’ ! had assumed from the evidence that ! Nelson, having failed to carry out a i certain promise made to the ; i was obliged on returning to Samoa to L i take steps to re-establish his mana of ’ | prestige. This was incorrect because, - j in fact, Nelson had never made any ; ! such promise, and on his return found ■ that his popularity and prestige were ■ as great as ever. Counsel suggested 1 that Percy Andrews, editor of the ■ Mau newspaper (“New Zealand and > Samoa Guardian”), had very great f dominion over Nelson and alleged that 1 his bad influence had led Nelson to say things which he had never intend--2 ea to carry into effect. Mr W. P. Shorland. who is appearing i with Mr Cooke for the appellant, add dressed the court on the question of L * the sentences imposed on Nelson. He 3 submitted that the court should take j into consideration the fact that there f was overwhelming evidence to show that Nelson’s policy and desire always j were for peace. Furthermore, his good character had never been questioned and there was no doubt that he was L sincere in his misguided belief. The j policy of the Mau itself was in gen--1 eral one of peace. The offences were k political, not criminal, and the ap--2 propriate punishment was exile rather 1 than imprisonment. Nelson had already suffered some imprisonment and s the period of exile was in itself sufficl ient punishment on account of Nelson’s business interests in Samoa, s The court adjourned until Thurs--1 day. It is expected that the case will 2 conclude on Friday.